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Conditions of engagement

Introduction

This document provides guidance on conditions of engagement including formal qualifications and security, character and health clearances. These conditions can be imposed on the engagement of both ongoing and non-ongoing employees under subsection 22(6) of the Public Service Act 1999 (the PS Act).

While probation and citizenship are among the conditions covered by subsection 22(6), they are the subject of separate documents and therefore not addressed in detail here—see Probation and Citizenship in the Australian Public Service.

This document includes a brief discussion of the powers that an agency head has to impose other conditions on a person's engagement, and provides frequently asked questions relating to conditions of engagement.

Conditions of engagement can be imposed by an agency head under subsection 22(6) of the PS Act when a person is engaged as an APS employee. Subsection 22(6) specifically mentions conditions relating to:

  • probation
  • citizenship
  • formal qualifications
  • security and character clearances
  • health clearances.

Subsection 22(7) makes it clear that it is possible to impose conditions other than those specifically referred to in subsection 22(6).

Prospective employees must be advised of any conditions applying to their engagement before they are engaged, and that not meeting these conditions can provide a basis for termination of their employment.

1. Legislative framework and general principles

This section outlines the legislative framework and general principles relating to conditions of engagement under subsection 22(6) of the PS Act. Under the PS Act, agency heads have all the rights, duties and powers of an employer. Their decisions must, of course, comply with the requirements of the PS Act and the various instruments issued under the Act including the Public Service Regulations 1999 (the Regulations) and the Public Service Commissioner's Directions (the Directions). Employment decisions must also take account of the requirements of the Fair Work Act 2009, administrative law and the common law of employment.

The Act allows an agency head to delegate to another person many of the agency head’s powers or functions under the Act. An agency head may choose to delegate powers under the Act relating to recruitment and selection to an APS employee within the agency. These powers can also be delegated, with the consent of the Public Service Commissioner, to an ‘outsider’—a person who is not an APS employee. Any delegation of these powers by the agency head must be in writing. A reference in this document to the agency head can also mean their delegate.

The PS Act is interpreted and applied by all APS agencies. It is therefore important that the Australian Public Service Commission (the Commission) be kept fully informed of current legal thinking on the interpretation of the Act so that this can inform the advice provided by the Commission to agencies. Agencies are therefore requested to liaise with the Commission when obtaining advice and forward copies of any legal advice that they obtain regarding the PS Act framework to the Commission, in line with Clause 10 of the Legal Services Directions. These should be forwarded to:

Legal Services Unit
Australian Public Service Commission
16 Furzer Street
PHILLIP ACT 2606

Agencies are also asked to ensure that the Commission is notified of any court or Fair Work Commission proceedings that raise interpretation of the Act framework. The initial point of contact for such cases is the Group Manager of the Employment Policy and Participation Group on (02) 6202 3808.

1.1 The legislative framework

The formal framework that applies to conditions of engagement is:

  • the Public Service Act 1999
  • the Public Service Regulations 1999
  • the Commissioner’s Directions 1999.

Other relevant legislation includes:

  • Administrative Decisions (Judicial Review) Act 1977
  • Age Discrimination Act 2004
  • Australian Citizenship Act 1948
  • Australian Human Rights Commission Act 1986
  • Criminal Code Act 1995
  • Disability Discrimination Act 1992
  • Fair Work Act 2009
  • Freedom of Information Act 1982
  • Migration Act 1958
  • Privacy Act 1988
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Spent convictions provisions in Part VIIC of the Crimes Act 1914.

Agency heads are also responsible for implementing protective security measures, as outlined in the Australian Government Protective Security Policy Framework.

1.2 Imposing conditions of engagement

The decision to impose a condition in respect of an ongoing or non-ongoing engagement rests with the agency head. The PS Act provides an agency head with the power to engage a person as an APS employee and to impose conditions on their engagement. While subsection 22(6) of the PS Act specifically mentions probation, citizenship, formal qualifications, security and character clearances, and health clearances, it does not limit the conditions that may be imposed. An agency head is able to impose other conditions under subsection 22(6)—see subsection 22(7).

In imposing conditions, the agency head should have regard to the APS Values and other relevant legislation. For example, anti-discrimination legislation makes it unlawful to discriminate against someone on a range of grounds, including race, religion, age, sex and disability.

The operation of the condition may also affect or be affected by industrial instruments setting terms and conditions of employment. Any industrial instrument negotiated with an employee who is subject to a condition of engagement might note the relevant condition.

It is important to remember that each subsection 22(6) condition is a separate condition of engagement and will therefore have to be met according to the arrangements for the particular condition. Should an employee's engagement be subject to, for example, three months' probation and obtaining a grant of citizenship within six months, the probation condition will need to be met according to the probation arrangements and the citizenship requirement will need to be met according to the citizenship condition. The employee's engagement will continue to be conditional until each condition attached to that engagement has been satisfied.

Conditions imposed under subsection 22(6) of the PS Act must relate to the person's engagement. Once a condition imposed under subsection 22(6) has been satisfied, an employee cannot have their employment terminated on the ground specified in paragraph 29(3)(f) of the PS Act for failing to meet that condition. (Paragraph 29(3)(f) specifies ‘failure to meet a condition imposed under section 22(6)’ as a ground for terminating the employment of an APS employee.)

Each agency head should develop policies for their agency on the application of conditions of engagement consistent with the legislative framework. An established policy framework of this nature assists consistent administration of agency practices and supports procedural fairness, equity and compliance with other APS Values.

1.3 Undertaking checks before engagement

When an employment opportunity is notified, it is preferable that the APS Employment Gazette notification and supporting selection documentation mention in brief whether any additional checks or conditions of engagement may need to be satisfied. In many cases it will be possible to undertake the necessary checks before a prospective employee is engaged. However, if a condition is not met before engagement, the employee's engagement may be made subject to meeting the requirements of one or more notified conditions. The employee should be fully advised in writing of any such conditions before engagement.

There are significant benefits to both agencies and individuals of conducting as many checks and clearances as possible before the person's engagement. While conditions can be imposed on a person's engagement, they cannot be imposed after the person has been engaged. If a pre-employment check reveals that a prospective employee will not meet the agency's particular requirements, the agency can decide not to proceed with the engagement.

1.4 Notification to an employee of a condition of engagement

It is important that all subsection 22(6) conditions, and any time limits imposed, are notified to the employee before they are engaged. If a condition of engagement is not notified to a prospective employee before engagement, there is no power to impose a condition of engagement retrospectively after engagement.

1.5 Assignment of other duties within an agency

It may be the case that an employee will be assigned other duties within the agency before they have been able to satisfy one or more of their conditions of engagement (e.g. Australian citizenship).

Generally, a condition of engagement will continue to apply if there is a change of duties, unless the terms of the condition are incompatible with the new duties, or the agency chooses to waive the condition because it is not relevant to the new duties. For example, if an employee is assigned new duties, this would generally not affect a requirement to obtain Australian citizenship.

Changes to an employee's duties during a period of probation may, however, give rise to more complex issues, depending upon the terms of the probation condition. Please refer to the information page on Probation for more details.

1.6 Movement to another agency

In general, any conditions of engagement should be satisfied before a new employee moves to another agency. However, there may be cases where an agency head does not wish to wait until a particular condition is satisfied before an agreement with the employee to move to the new agency takes effect.

In such a case, the post-move or ‘new’ agency head may choose to waive the condition (for example, if the original agency imposed a more demanding health or security clearance condition than is needed for the new duties). Alternatively, the new agency head may wish to continue the condition.

Whether, as a matter of law, a condition of engagement can continue when an employee moves to another agency depends upon the nature of the condition and how it was framed—for example, whether it related just to the specific duties for which the employee was originally engaged or whether it reflects a more general policy requirement such as Government policy regarding Australian citizenship.

If the condition is framed in such a way that it can continue, and the new agency head wishes it to continue, it will provide more certainty for both sides if this is explicitly recorded, for example as part of the agreement to move under section 26 of the PS Act.

Where a condition continues, the employee's employment may be terminated by the new agency head on the ground specified in paragraph 29(3)(f) of the PS Act if the employee fails to meet the condition.

It is the responsibility of the new agency to inquire into the status of the employee's current employment, the presence of any unmet conditions of engagement, and whether any conditions will continue if the employee moves to their agency.

1.7 Consequences of failing to meet a condition of engagement

If conditions have been imposed and a person is engaged and commences employment subject to satisfactorily meeting, for example, a security clearance and subsequently fails to meet the required level of clearance, their employment will be able to be terminated on the ground specified in paragraph 29(3)(f) of the PS Act. Termination may, however, cause considerable disruption to the employee, the employer and the workplace. Agencies should therefore consider implementing arrangements to ensure that, as far as practical, they are satisfied that a prospective employee meets, or is able to meet, all the relevant requirements before they are engaged.

Additional information can be found in the APSC publication Terminating APS employment: The legislative framework.

1.8 Continuing conditions

In some cases agency heads may want to impose or vary requirements or conditions that an employee must meet on a continuing basis, such as the need to maintain a particular level of security clearance. Such conditions cannot be imposed under subsection 22(6) as this provision can only be used to impose conditions in connection with the engagement process.

There may be scope to impose or vary requirements applying to existing employees and/or to vary the essential qualifications that apply to the performance of particular duties under other heads of power, for example under section 20 of the PS Act. However, this raises wider issues which are outside the scope of this guide.

As this can be a complex issue, an agency may wish to consider obtaining legal advice before proceeding.

2. Subsection 22(6) conditions of engagement

This section describes the legislation and general principles applying to conditions (other than probation and citizenship) mentioned in subsection 22(6) of the PS Act—namely, formal qualifications, security and character clearances, and health clearances. It includes a brief discussion of the powers that an agency head has to impose other conditions on a person's engagement. Agencies should be aware that conditions can be imposed on the engagement of both ongoing and non-ongoing employees.

2.1 Formal qualifications

Any requirement that an employee possess a formal qualification should be dealt with before engagement and would generally be specified in the APS Employment Gazette notification and any other advertising as well as in supporting selection documentation provided to applicants. Nonetheless there may be cases where an agency may choose to make an offer of engagement subject to a condition under subsection 22(6) that the person produces evidence of the necessary qualification within a specified period. This usually applies in instances where, for example, the agency engages an undergraduate who has satisfactorily completed all the requirements of a course, has provided evidence of completion, and is waiting for the degree to be conferred, or where for some reason the person is not immediately able to produce evidence of the qualification.

Failure to meet a condition relating to formal qualifications can result in termination of employment on the ground specified in paragraph 29(3)(f) of the PS Act.

For information on the recognition of overseas professional and other qualifications, contact the National Office of Overseas Skills Recognition in Australian Education International.

Agencies should note that they are required to comply with any Commonwealth and State licensing and registration laws that may be associated with a professional, technical or trade qualification.

2.2 Security clearances

An agency head may require a employees to obtain a security clearance as a condition of engagement. This condition would normally be mentioned in the APS Employment Gazette notification and any other advertising as well as in supporting selection documentation provided to applicants.

As with other conditions, it is preferable to complete any required security clearance action before a prospective employee is formally engaged. However, an agency head may consider it appropriate to engage a person subject to the person satisfactorily obtaining a security clearance within a specified timeframe after commencement.

If so, an appropriately drafted condition of engagement should be advised in writing to the prospective employee before engagement. The condition should state the level of clearance required, and, if appropriate, specify a period within which the clearance must be obtained. It should be drafted so as to enable the agency to terminate the person's employment at an earlier date if a clearance is refused or if it becomes clear that a satisfactory clearance will not be obtained.

When an agency determines that a particular level of security clearance is required for specific duties or sets of duties, the requirement must be based on a risk assessment and relevant to the duties to be performed and/or the agency environment. The imposition of security clearance requirements that cannot be justified may be incompatible with merit-based decision making.

Requirements for particular levels of security clearance should be consistent with the protective security policy and practices outlined in the Australian Government Protective Security Policy Framework.

Agencies, or their contracted employment service providers, notifying employment vacancies are not to exclude applicants who are not holders of a current security clearance where they indicate a willingness to undergo the clearance process prior to commencing employment.

Failure to obtain the required level of security clearance can result in termination of employment on the ground specified in paragraph 29(3)(f) of the PS Act.

2.3 Character clearances

An agency head has the discretion to require a character clearance as a condition of engagement under subsection 22(6) of the PS Act.

Character clearances enable an agency to ensure that a prospective employee is a suitable person to be engaged as an APS employee, or for specific duties. Character clearances may be particularly appropriate for non-ongoing employees in situations where the employees will be responsible for the handling of public money, holding positions of trust, or with access to sensitive information.

This requirement would normally be mentioned in the APS Employment Gazette notification and any other advertising as well as in supporting selection documentation provided to applicants. Consistent with the Information Privacy Principles, agencies should advise prospective employees of the agency's usual practices regarding character checking.

Again, it is preferable to complete any required checks before a prospective employee is formally engaged. This can be done by sending the prospective employee any necessary consent forms and requiring them to be returned promptly to enable the required checks to be completed so that the engagement can proceed.

However, an agency head may consider it appropriate to engage a person subject to the person satisfactorily meeting a character clearance after commencement. If so, an appropriately drafted condition of engagement should be provided in writing to the prospective employee before engagement. The condition should state the requirement to obtain a character clearance, and, if appropriate, specify a period within which the clearance must be obtained. Any condition should be drafted so as to enable the agency to terminate the person's employment at an earlier date if a clearance is refused or if it becomes clear that a satisfactory clearance will not be obtained.

It is often preferable to advise the prospective employee what 'test' they have to meet, for example, that the agency head needs to be satisfied that they are a fit and proper person for engagement as an APS employee or to perform the specific duties. Agencies should be aware, however, that there is no obligation upon a prospective employee to draw attention to a matter which has a bearing on their suitability for engagement, unless they are explicitly asked about it, for example, during the selection process, any pre-employment checks, or the character clearance process. Section 2.6 of this document discusses some options for agencies to avoid the situation of a prospective employee making false or misleading statements in relation to their possible engagement in the agency.

The character clearance process is designed to enable the agency head to satisfy themselves that the person meets the requirements of the agency. The agency head can determine that checks should be made, for example, through a police records check with the Australian Federal Police, with any relevant professional licensing or registration board, and on previous employment in the same agency, another APS agency or other employer, to determine whether:

  • the person has a criminal conviction or criminal charges that are pending;
  • an inquiry by a professional licensing or registration body is pending; and/or
  • there have been any findings that the employee breached the APS Values or a misconduct investigation was pending at the time the person ceased employment.

Agencies may wish to ensure that any consent forms relating to the character clearance process are drafted widely enough to enable them to check not only with a prospective employee's human resources area, but also their previous manager.

A criminal conviction or pending charge does not necessarily justify excluding a person from APS employment. Nonetheless, an agency head may be concerned that a particular conviction reflects on the person's fitness to perform particular duties, or may affect the integrity and reputation of the APS or the health and safety of other employees. Equally, where a charge is pending that has clear relevance to a person's suitability for APS engagement, it may not be possible for the agency head to be satisfied about the person's character.

APS agencies are obliged to comply with the requirements of the 'Commonwealth Spent Convictions Scheme' under Part VIIC of the Crimes Act 1914. It should be noted that refusing engagement or terminating employment on the basis of a criminal record that is not relevant to the proposed employment might present a basis for a complaint under the Australian Human Rights Commission Act 1986.

When dealing with a previous breach of the APS Code of Conduct, the following factors should be considered:

  • the nature of the breach (or suspected breach)
  • the sanction imposed
  • how long ago the breach or suspected breach occurred
  • the nature of the duties being performed at the time
  • the duties of the current employment opportunity
  • whether this was a one-off action or part of a pattern of behaviour.

Failure to obtain a required character clearance can result in termination of employment on the ground specified in paragraph 29(3)(f) of the PS Act.

2.4 Health clearances

Subsection 22(6) of the PS Act enables agency heads to impose a health clearance condition on the engagement of ongoing or non-ongoing employees. This requirement would normally be mentioned in the APS Employment Gazette notification and any other advertising as well as in supporting selection documentation provided to applicants.

One purpose of a health clearance is to satisfy the agency head that the employee has the physical and mental capacity to perform their duties. Other purposes may be to find out any information relevant to meeting the employer's duty of care under work health and safety legislation and to identify any reasonable adjustments that are needed to the workplace environment of a person with a health-related disability. (See section 2.5 of this document for a further discussion of reasonable adjustment).

Where an employee is engaged subject to a health clearance condition, Public Service Regulation 3.1 provides a specific power for an agency head to direct an employee to undergo a medical assessment by a registered medical practitioner of the employee's fitness for duty.

It is up to the agency head to decide what evidence they require in order to be satisfied that an employee is fit for duty. The agency head might require a prospective employee to provide a declaration of their health status in the form required by the agency, or may require the employee to undertake a medical examination or some other form of expert assessment (such as eyesight testing) before commencing employment.

While it is preferable to complete any checks before a prospective employee commences employment, an agency head may consider it appropriate to engage a person subject to the person satisfactorily completing a health clearance within a specified timeframe after commencement.

Factors that may make a medical or other expert assessment desirable include practical, physical or psychological requirements for the job, and work health and safety considerations or issues relating to the employer's duty of care. If a person has a pre-existing condition, they are obliged to disclose it if asked, so that their fitness to perform the related duties can be investigated and confirmed. It is also necessary so that the agency can properly assess its liability for potential aggravated injury. In cases of uncertainty (e.g. where a person is recovering from a serious medical condition) an agency may want to include, in the framing of a health clearance condition, an on the job assessment of whether the employee can meet the full range of the inherent requirements of the duties to be performed.

These issues need to be addressed in the wording of the condition of engagement which needs to be fully advised in writing to the prospective employee before engagement.

Failure to obtain a required health clearance can result in termination of employment on the ground specified in paragraph 29(3)(f) of the PS Act

Medical information is one of the most sensitive categories of personal information. It is important that agencies impose high standards of physical security and strict limitations on access to and use of personal medical information, in order to prevent possible breaches of the Information Privacy Principles.

2.5 Reasonable adjustment

When requiring and conducting health clearances, agencies should have regard to their obligations under disability discrimination legislation and the principle of reasonable adjustment. Reasonable adjustment reflects the understanding that people with disability can often perform the tasks of a position where adjustments are made to accommodate the effects of their disability.

It is unlawful under the Disability Discrimination Act 1992 for an employer to discriminate against an employee or prospective employee on the ground of their disability. In addition, the APS Values require a workplace free from discrimination, where decisions are based on merit and where diversity is recognised and utilised.

The Disability Discrimination Act also requires agencies to ensure that people with a disability have, among other things, equal access to and opportunities for employment. For further information see the Australian Human Rights Commission website.

For some people with a disability, a barrier to equal opportunity may be a feature of the work environment which could readily be altered. Making changes to ensure equal opportunity for people with a disability is commonly referred to as ‘reasonable adjustment’. While this term is not contained in the Disability Discrimination Act, it is implicit in provisions such as section 6 of that Act, which requires the removal of unreasonable requirements which disadvantage people with a disability.

If a person with a disability is the best person for the duties, then the agency must make workplace changes if the person needs them in order to perform the essential requirements of the duties. Examples include modifying work premises or equipment, or changes to job design, work schedules or other work practices. However, the Disability Discrimination Act does not require adjustments which involve changing the inherent requirements of a job, or which would impose an unjustifiable hardship on the employer.

More detailed guidance can be found at http://humanrights.gov.au/disability_rights/ and in the APSC publication Ability at Work under the heading “reasonable adjustment”.

2.6 Imposing other conditions of engagement

Subsection 22(7) of the PS Act allows an agency head to impose conditions on an employee's engagement other than those conditions specifically mentioned in subsection 22(6) and discussed above. The imposition of any such conditions must accord with merit-based decision-making and the other APS Values.

For example, an agency may wish to impose as a condition of engagement the satisfactory participation in and completion of an entry-level training program. Such a program may include a Graduate APS program, or a traineeship or apprenticeship over a specified period of time, and an agreed level of competence at completion.

Another example is imposing as a condition of engagement that the employee did not provide false or misleading information in connection with their engagement. It may be appropriate that such a condition has a similar time-frame to the employee's period of probation (if there is one), enabling the agency head to determine the person's appropriateness for the employment opportunity in a reasonable period of time, taking into account all relevant considerations.

Agencies should be aware that any actions relating to the employee's employment that rely on this condition will need supporting evidence. If an agency chose to terminate an employee's employment for breach of such a condition, but could not show that the employee deliberately misled them, then the termination may be found to be harsh.

Other options available to agencies include deciding against imposing a time limit (except for probation), or imposing a time limit for a specified period. This would enable the agency head to retain the ability to terminate the person's employment on the ground specified in paragraph 29(3)(f) of the PS Act if it was found at a later stage that the person provided false information during their recruitment.

However, agencies should bear in mind that the Fair Work Commission could have regard to the period between engagement and any action to dismiss a person based on a breach of the condition in considering whether the dismissal was harsh, unjust or unreasonable. It should also be noted that reliance on such a condition as a basis for termination of employment may be considered to be less ‘fair’ over time.

Agencies are best placed to determine the most appropriate use of such a condition, taking account of their operational requirements and the legislative framework. As with other conditions of engagement imposed under subsection 22(6) of the PS Act, an appropriately drafted condition of engagement should be advised in writing to the prospective employee before engagement.

Agencies may also consider the alternative of requiring new employees to sign a declaration, shortly after they are engaged, to the effect that all of the statements they made in the course of their recruitment engagement are true. In this context, agencies may also wish to advise prospective employees that the Criminal Code Act 1995 creates offences relating to the provision of false information or documents.

3. Checklist

The following checklist can be used to ensure that the key issues have been addressed when considering imposing conditions on an employee's engagement. Agency-specific requirements should be specified in agency policy and procedure documents.

I wish to impose a condition of engagement relating to:
checkbox Probation
  checkbox I have considered the appropriate length for the person's probation
checkbox Citizenship
  checkbox I have checked whether the person is an Australian citizen
  checkbox I have decided to engage the person as a non-citizen
  checkbox I have decided to engage the person, on condition that they seek and obtain Australian citizenship
  checkbox I have checked the person's visa and work entitlements
checkbox formal qualifications
  checkbox I need to see evidence of the person's formal qualifications
checkbox security clearance
  checkbox I have considered the appropriate level of security clearance needed
checkbox character clearance
  checkbox I have considered the appropriate type of character clearance needed
checkbox health clearance
  checkbox I have considered the appropriate level of health clearance needed
checkbox other conditions as appropriate

What I need to do:
checkbox impose more than one condition of engagement as separate conditions
checkbox include the need for each condition in the APS Employment Gazette notice
checkbox set timeframes for each condition of engagement
checkbox include each condition of engagement in the employee's letter of engagement
checkbox receive acknowledgement from the employee that they are aware of, understand and accept the condition(s)

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